Criminal Blog

Fay & Grafton is proud to announce Attorney Ana Nunez has been selected as one of the 17 members for the newly commissioned ‘Racial Equity Task Force Board’ for the city of Durham, North Carolina.

According to coverage from the website IndyWeek.com, “A 2015 report from Triangle J Council of Governments and Kerr-Tar Regional Council of Governments found that …one in three Latinos and one in five African Americans now live in poverty compared to one in ten whites. Latinos are more than six times as likely to be working poor as whites, and both black and Latino residents earn lower wages than whites at every education level.”

IndyWeek.com also added: “The first goal of the task force is to ensure that the public is made aware of these disparities.

The task force will also work to identify best practices for policy changes and social interventions addressing racial inequality. Members will research initiatives that had success in other cities, and look for ways those changes could be implemented in Durham. Finally, the task force will make funding and policy recommendations to government, businesses, and the community at-large.”

The entire staff at Fay & Grafton congratulate Attorney Nunez on this high-profile task force assignment and in advancing the causes of racial, income & educational equality in the city of Durham, North Carolina.

I’m disheartened at how little push back there is in this country of checkpoints, roadblocks, checking stations – whatever you want to call them. We have all seen them – you are driving down the road and all of a sudden, there is a backlog of traffic – it looks like there has been a big accident up ahead. You pull forward, and a cop stops you – he or she is polite enough, looks you over, shines a flashlight through the inside of your car and at each of your passengers, asks you where you are coming from and where you are heading, and usually wants to see your drivers license and registration. Maybe the whole thing only lasts 30 seconds – or maybe the cop gets a sniff that you are doing something – anything that is against the law – in which case, you get moved to a secondary spot in the checkpoint for further investigation.

So whats the big deal? If I’m not breaking the law – I have nothing to worry about, right? If that is the case, why not have police officers go door to door as well – just to check and make sure that we are abiding by the law in our homes. The big deal is that we live in a free country – or at least we are supposed to. We fought the fight over general warrants over 200 years ago – and we won. Why are we so willing to give those liberty interests back now?

The Supremes have weighed in on this issue several times – and basically have said that Checkpoints are permissible IF …..

The IF has to do with the purpose for checkpoint and how its conducted – but the practical effect is that the Courts, absent some pretty egregious circumstances, tend to side with the State on the validity of their checkpoints. I see lawyers look over checkpoint plans and forego even having hearings on the issue because they know the Court is going to give the State a pass.

Here is the real kicker. Checkpoints do not work. In Wake County, most weekends you will see – somewhere in the county – a multi agency checkpoint forcused on DWIs. This means that Raleigh, Cary, Garner, Apex, Fuquay, Knighdale, WCSO, and even the Highway Patrol (among others) send a few DWI focused officers to spend 5 or 6 hours stopping every car who pulls thru and make sure the driver is sober. There will be 20 or more officers, a magistrate, an chemical analyst, and the “batmobile” (a bus with a few breath testing machines) on site for hours. How many DWIs is a checkpoint like this going to nab? 20? 30? Not even close. At the high end, a checkpoint might get 10 and usually the number is more like 2 or 3. They will get to write other tickets – driving on an expired license, no seatbelt, maybe they get a weed bust – but the purpose of the checkpoint isn’t achieved at all. Consider this – those DWI focused officers – and every agency has a few cops who make DWIs their personal mission – they generally average one DWI arrest per night just by driving around and looking for them. They can catch more drunk drivers by enforcing the law constitutionally than they can by stopping everyone who comes thru a checkpoint.

So why do they waste their time with checkpoints when they are so much more effective on patrol? Money. The Federal Government gives local agencies money so that they can buy all their cool equipment as long as they put up these checkpoints every so often. The feds don’t care how many arrests come out of them, only that they are conducted. Tax money well spent, huh? I have heard the argument that checkpoints deter drunk drivers – even if they don’t catch them . . . Malarkey. That assumes that drunk drivers use reason and common sense in formulating a decision to get behind the wheel – which, of course, they don’t.

The bottom line is this – we aren’t supposed to live in the country where we go thru checkpoints and have to show some authority figure our papers. This is the land of the free – and that is only the case because of the limits that the Constitution places on the government in how it deals with the citizenry. We the people need to police those limits. Freedom is like a muscle – if you don’t flex it now and again, it withers and atrophies away.

Criminal Lawyers in North Carolina, and across the United States, know that our criminal courts are money makers for states and our local counties. In the last decade in North Carolina, court costs have nearly tripled. The legislature has – time and time again – looked to our criminal justice system as a system of taxation. These click it or ticket campaigns, booze it or lose it, obey the sign or pay the fine – they are postured as safety measures – and I’m sure there is a tinge of safety somewhere in the idea, but let’s not kid ourselves – these are also fundraisers. Speeding is dangerous, DWI even more so, don’t get me wrong – there are certainly legitimate reasons to enforce the motor vehicle code. But what gets lost in these ‘no tolerance’ policies of law enforcement and district attorney’s offices are the people who can’t afford an extra few hundred bucks here and there.

When someone who is barely scraping by economically gets a speeding ticket, it sometimes snowballs into a disaster. Imagine a guy who works as hard as he possibly can in a minimum wage job to pay his bills gets a speeding ticket. He can’t afford a lawyer so he misses a day of work to go to court and handle it himself. Let’s assume this guy has a reasonably clean driving record. He will likely be told that his ticket is going to cost him a minimum of $188 and that assumes that the case is settled as an infraction and there is no fine imposed at all – which is somewhat rare. He is told that for an additional fee, he can get it knocked down to an improper equipment, a non-moving violation – which is probably a good idea for him insurance wise. The range for how much an improper equipment will cost varies county to county and sometimes based on the original speed from roughly $268 up to as high as $638. Our guy can’t even afford the $188 so he gets the case continued hoping that another month or two will give him the time to come up with the money he needs to resolve this ticket even if it means he will need to spend more time away from work. This continues until the Court loses patience and refuses to continue the case any longer. Now our guy is stuck.

Maybe he pleads guilty and just doesn’t pay the fine at all. Maybe he just doesn’t show up for court knowing that he can’t pay for the ticket. Either way, a clock has now started ticking towards his license being revoked and this ticket, when he does finally handle it, has gotten significantly more expensive. The late fee on a payment (failure to comply is $50), the fee for handling a ticket on a failure to appear is an extra $200 – both waivable by the Court, but not often waived.

Maybe our guy is just blatantly honest with the ADA and the Judge about his inability to pay. Hardship cases generally fall on deaf ears in the courthouse, not because the ADAs and Judges aren’t compassionate people, but because their hands are often tied by office policies or legal requirements. District Court judges have the authority to waive court costs, but in the last few years the legislature made doing so an arduous process for judges. Court costs can now be waived only by written order, supported by findings of fact and conclusions of law, determining that there is just cause to do so. The effect of this legal modification is exactly what the legislature hoped it would be – court costs aren’t getting waived very often at all. Some courts will offer a deferred payment plan – giving a little extra time to come up with the money – but at an additional price, of course.

Often, the end result is a revoked license, which makes matters even worse because our guy continues to drive. He still needs to get to work and our public transportation system isn’t adequate for him. So he drives. Its easy for officers to catch a DWLR – many of the police cars have scanners that read license plates and notify the officers when the registered owner of that car is revoked. Blue Lights – arrest – bad situation even worse. Now we have bail money to raise, a more serious offense pending, with its own court costs and fines. Each DWLR conviction gets our guy farther and farther away from ever having a license again.

I know, he shouldn’t have been speeding in the first place, right? Don’t do the crime if you can’t do the time? I can feel your lack of sympathy for our guy – its palpable. But this fictional guy exists in droves in most every county in the state in most every state in the Union. These are real people who get stuck in impossible situations in a country where we aren’t supposed to have debtor’s prison.

There is hope – and it comes from the Department of Justice of all places. In November of this year, the DOJ filed a statement of interest in the U.S. District Court for the Western District of Virginia addressing the constitutionality of state policies that automatically suspend the driver’s licenses of those who fail to pay court fines or fees. For you budding legal scholars, the brief can be found here:

https://www.justice.gov/opa/press-release/file/909301/download

It remains to be seen what will come of all of this, but at least the issue is getting notice on a national level.

Until we get some large scale legal resolution, such as the DOJ is trying to achieve, we simply need to address these situations as best we can on a day to day basis. Our attorneys always offer free consultations on driver’s license restoration. If you are truly indigent, we will consider pro bono representation to get you the help that you need. Give us a call and let’s get started.

North Carolina law just can’t make up its mind as to when a young person is to be considered an adult. Consider this – at age 18 you can vote, you can enter into legally binding contracts, you can purchase tobacco, you can voluntarily enter or be drafted into military service, but you still cannot purchase alcohol – you have 3 more years before you can be trusted with that. At age 16, you cannot enter into a contract, you cannot vote, you cannot purchase cigarettes, you certainly cannot purchase alcohol, you are not old enough to enter into the military – but get this – you are old enough to be treated as an adult in the criminal justice system and you are old enough for an adult to legally have sex with you. And while an adult can legally have sex with you – they cannot have naked pictures of you – that would be considered – wait for it – child porn. In what world does this make sense? We can’t trust you to be mature enough to consent to enter into a monetary contract with another person – but you can consent to have sex or to have the stigma of your worst decisions imprison you and potentially follow you for the rest of your life?

Changes In The Law

Fortunately, there is a movement sweeping North Carolina now advocating raising the age at which our youth are considered adults in the criminal justice system from 16 to 18 and, perhaps I am naive for having faith in the legislature, but I think it is going to happen. North Carolina is one of two states in the nation where a 16 year old is automatically teed up as an adult. And yes – a 16 year old is capable of horrendous things the same way a 14 year old is and like there is for the 14 year old – there would still be a mechanism by which prosecutors could petition the Court to treat a juvenile defender as an adult. This change would merely change the starting point – which is long over due.

Why does it matter? Thanks for asking – here is why it matters…

We have well over a thousand criminal laws in North Carolina and while you may think that you are always on the right side of them – you probably break several per day without even knowing it. If you are a teenager in this state – especially in one of major metropolitan areas – then our police are looking squinty eyed at you every chance they get. Its not enough to be good, you can’t even be around others who are committing crimes. If a car full of kids is pulled over and the officer finds drugs, absent one of the kids owning up to it everyone in that car is getting charged. Two kids go to a store and one of them steals something – the other one gets written up as an accessory. A kid gets jumped by some bully at school and ends up getting charged with simple affray. These cases happen – and they happen to good kids.

So the Court sorts out all of that, right? Generally it can – most of our prosecutors are fairly reasonable people, most counties will give first offenders second chances through deferred prosecutions or diversion programs, and most of our judges and juries can separate the wheat from the chaff, so to speak. But then what? When you get charged with a crime, the charge – not just the conviction – shows up on your criminal record – even if it is dismissed and even if you are acquitted. In order to truly get rid of the stink of having been charged with a crime, a kid needs to have it expunged – and North Carolina only lets you have one expungment in your lifetime. So if you are the kid who got jumped in school and an overzealous school resource officer decided to charge you with an affray – you have to choose between having the affray charge show up on every background check for the rest of your life in this state or burning your one and only expungement. The juvenile system, by contrast, is not a matter of public record. While still a pain in the romp, the 16 year old who goes through the juvenile justice system does not typically have the entire rest of his or her future hanging in the balance. Instead, he or she goes through a process specifically designed to help address the situation, makes any potential victims whole again, and educate the teen on how and why the situation came to exist in the first place. In other words, it treats them like the children that they are so that they might yet grow up to become the adults that they can be.